The Wyoming Supreme Court has upheld digitally transmitted court authorizations for search warrants as permissible under the Fourth Amendment. Some states, such as Wyoming, already allow judges and clerks to issue search warrants without a formal written application by the officer or prosecutor. As a Massachusetts Criminal Defense Lawyer, the use to telephonic warrants represents an erosion of the warrant requirement and its use should be limited in scope by the Court.

In the cases of Terry Smith v. Wyoming, and Dena Blomquist v. Wyoming, the defendants were individually arrested for an OUI offense. Both defendants were required to submit to a blood alcohol test after a judge remotely issued a warrant. The Supreme Court of Wyoming held that these remotely communicated warrants were lawful and afford the defendants the same protections as warrants that were formally applied for by written affidavit.

The Wyoming state legislature passed a statute authorizing officers to compel arrestees to submit to chemical tests once the officer has a search warrant issued on paper or one that is “remotely communicated.” The statute defines a “remotely communicated warrant” as a communication between a judicial officer and the police officer or prosecutor authorizing a search by voice transmission, image, or text as long as the communication is recorded. The communication may be recorded in writing, or by any other means.

In each case, the arresting officer called a circuit court judge using a recorded telephone line operated by the county sheriff’s office. The judge was informed that the officer was under oath, and after hearing the officer’s request, instructed the officer to affix the judge’s signature on the search warrant. The defendants in each case argued that their constitutional rights to privacy were violated.

The main question asked of the Court was whether remotely communicated search warrant procedures provide the same protection to defendants as do traditional warrants issued upon an officer submitting a written affidavit to the court with the application for the warrant. Both the state constitution and the state rules of criminal procedure require that a search warrant be issued on probable cause and be supported by an affidavit. These state standards are more stringent than those provided in the federal constitution, which only requires that warrants be issued on “oath or affirmation” rather than by written affidavit.

The Court found that while the affidavit requirement of the state constitution provides more protection than the federal “oath or affirmation” requirement, the remotely communicated warrant in these cases was still constitutional under the state constitution. The reason is that the request by the arresting officer was not only made by the arresting officer himself while the officer was under oath, but the conversation was also recorded on a secure line. The requirements of the constitution were therefore satisfied, and the remotely communicated warrant offered the defendants the same constitutional protections as any other warrant supported by written affidavit.

Furthermore, remotely communicated warrants are to be treated exactly like all other warrants under state rules of criminal procedure since they satisfy all the same requirements. The Court in this decision highlighted the need for the judicial system to recognize technological advances which can still securely recorded communications but with much less wasted time. The Court essentially stated that legal authorizations no longer need to be written in pen and paper, as long as they are recorded in some form.

As technology advances, defendants can expect to continue seeing more authorizations digitally transmitted rather than requiring a formal written application. These new procedures will give both officers and prosecutors much more flexibility in their criminal investigations. Defense attorneys should be aware that these authorizations will make suspects much more susceptible to searches and seizures, since officers will be able to conduct a search only a short time after observing an offense and forming probable cause.

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